STATE OF H.P. Vs. KANWAR SINGH

JUDGEMENT

(1.) This appeal by the State is directed against the judgment dated 18.07.1998 delivered by the learned Sessions Judge, Kinnaur Sessions Division, Rampur Bushahr, in Sessions Trial No. 19 of 1996 whereby he acquitted the accused of having committed offences punishable under Ss. 376 read with Sec. 420 of the Indian Penal Code.

(2.) The prosecutrix lodged a complaint with the police on 12.09.1995 to the effect that in the month of February 1995 when she was returning home after collecting fodder from the fields, the accused accosted her on the path near the house of Kamlu Ram. He snatched and threw away the Kilta full of grass which was being carried by the prosecutrix. Thereafter, he broke the Nara of the Salwar of the prosecutrix and committed forcible sexual intercourse with her. She further alleged that she raised a hue and cry but none came to save her since her mouth was gagged. According to the prosecutrix, since the accused had promised her that he would marry her, she did not disclose this fact to anybody. In the same complaint, it was alleged that the occurrence in question was seen by Kamlu Ram. According to the prosecutrix despite this promise held out to her the accused did not marry her. She became pregnant because of the sexual act. On 3.9.1995 the prosecutrix met the accused and asked him to marry her. He flatly refused to do so. Instead, he gave her Rs. 700/ - and directed her to get the foetus aborted. It was only thereafter that she disclosed the factum of her being pregnant to her mother. Her parents also approached the accused and asked him to marry the prosecutrix but he refused. Thereafter, the complaint was filed. On the basis of this complaint F.I.R. Ext.PW -4/A was lodged and investigation was conducted. The prosecutrix was got medically examined by two doctors who found that she was carrying a foetus which was 29 weeks old. On the basis of this investigation, the accused was challaned for having committed the offences aforesaid. Since the offences were exclusively triable by the Court of Sessions, the case was committed to the Sessions Court. After trial, the accused has been acquitted. Hence the present appeal.

(3.) The prosecutrix in her statement has virtually repeated what she had stated in her complaint. Her statement cannot be accepted to be totally correct. On the one hand she states that Kamlu Ram had seen the occurrence and on the other hand she states that the accused had promised to marry her and had also threatened her that she should not disclose this fact to anybody. If Kamlu Ram had seen the occurrence there was no question of her trying to hide the factum of her having been raped by the accused. Secondly, the story that after rape she kept quite because the accused had promised to marry her does not appear to be correct. It is obvious that the prosecutrix was a willing party to the sexual act though it may be for the reason that she was under the impression that the accused would marry her. The prosecutrix kept silent for seven months and did not disclose this fact to anybody till her pregnancy was discovered. She is not a small child and the learned trial Court found that she was 19 years old at the time of the occurrence. Even she states that the occurrence happened near the house of Kamlu Ram. If she had raised a hue and cry Kamlu Ram would have come to rescue her.